Am. Civil Liberties Union v. Clapper

• Citation: 785 F.3d 787
• Decision Date: 07 May 2015
• Docket Number: Docket No. 14–42–CV.
• Parties: AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation, Plaintiffs–Appellants, v. James R. CLAPPER, in his official capacity as Director of National Intelligence, Michael S. Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Ashton B. Carter, in his official capacity as Secretary of Defense, Loretta E. Lynch, in her official capacity as Attorney General of the United States, and James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

785 F.3d 787

AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation, Plaintiffs–Appellants

v.James R. CLAPPER, in his official capacity as Director of National Intelligence, Michael S. Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Ashton B. Carter, in his official capacity as Secretary of Defense, Loretta E. Lynch, in her official capacity as Attorney General of the United States, and James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation, Defendants–Appellees.^*

Docket No. 14–42–CV.

United States Court of Appeals, Second Circuit.

Argued: Sept. 2, 2014.

Decided: May 7, 2015.

Alexander Abdo, American Civil Liberties Union Foundation (Jameel Jaffer, Patrick Toomey, Brett Max Kaufman, Catherine Crump, American Civil Liberties Union Foundation, New York, N.Y.; Christopher T. Dunn, Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, N.Y., on the brief), New York, N.Y., for Plaintiffs–Appellants.

Stuart F. Delery, Assistant Attorney General, Civil Division, United States Department of Justice (Douglas N. Letter, H. Thomas Byron III, Henry C. Whitaker, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y.; David S. Jones, John D. Clopper, Emily E. Daughtry, Assistant

United States Attorneys, New York, N.Y., on the brief), Washington, D.C., for Defendants–Appellees.

Laura K. Donohue, Georgetown University Law Center, Washington DC, Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, CA, for Amici Curiae Former Members of the Church Committee and Law Professors in Support of Plaintiffs–Appellants.

Charles S. Sims, Proskauer Rose LLP, New York, N.Y., for Amici Curiae Senator Ron Wyden, Senator Mark Udall, and Senator Martin Heinrich in Support of Plaintiffs–Appellants.

Cindy Cohn, Mark Rumold, Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA, for Amici Curiae Experts in Computer and Data Science in Support of Appellants and Reversal.

John W. Whitehead, Douglas R. McKusick, The Rutherford Institute, Charlottesville, VA, Daniel L. Ackman, Law Office of Daniel Ackman, New York, N.Y., for Amicus Curiae The Rutherford Institute in Support of Appellants and Reversal.

Edward J. Davis, Linda Steinman, Lacy H. Koonce, III, Davis Wright Tremaine LLP, New York, N.Y., for Amicus Curiae PEN American Center, Inc., in Support of Appellants.

John Frazer, Law Office of John Frazer, PLLC, Fairfax, VA, for Amicus Curiae National Rifle Association of America, Inc., in Support of Plaintiffs–Appellants and Supporting Reversal.

Jonathan Hafetz, Association of the Bar of the City of New York, Gary D. Sesser, Stephen L. Kass, Michael Shapiro, Laura A. Zaccone, Carter Ledyard & Milburn LLP, New York, N.Y., for Amicus Curiae Association of the Bar of the City of New York Supporting Plaintiffs–Appellants' Brief.

Before: SACK and LYNCH, Circuit Judges, and BRODERICK, District Judge.^**

Opinion

ROBERT D. SACK, Circuit Judge, concurs in the opinion of the Court and files a separate concurring opinion.

GERARD E. LYNCH, Circuit Judge:

This appeal concerns the legality of the bulk telephone metadata collection program (the “telephone metadata program”), under which the National Security Agency (“NSA”) collects in bulk “on an ongoing daily basis” the metadata associated with telephone calls made by and to Americans, and aggregates those metadata into a repository or data bank that can later be queried. Appellants challenge the program on statutory and constitutional grounds. Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants' constitutional arguments. We affirm the district court's denial of appellants' request for a preliminary injunction.

BACKGROUND

In the early 1970s, in a climate not altogether unlike today's, the intelligence-gathering and surveillance activities of the NSA, the FBI, and the CIA came under public scrutiny. The Supreme Court struck down certain warrantless surveillance procedures that the government had argued were lawful as an exercise of the President's power to protect national security, remarking on “the inherent vagueness of the domestic security concept [and] the necessarily broad and continuing nature of intelligence gathering.” United States v. U.S. Dist. Court for the E. Dist. of Mich. (Keith ), 407 U.S. 297, 320, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). In response to that decision and to allegations that those agencies were abusing their power in order to spy on Americans, the Senate established the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the “Church Committee”) to investigate whether the intelligence agencies had engaged in unlawful behavior and whether legislation was necessary to govern their activities. The Church Committee expressed concerns that the privacy rights of U.S. citizens had been violated by activities that had been conducted under the rubric of foreign intelligence collection.

The findings of the Church Committee, along with the Supreme Court's decision in Keith and the allegations of abuse by the intelligence agencies, prompted Congress in 1978 to enact comprehensive legislation aimed at curtailing abuses and delineating the procedures to be employed in conducting surveillance in foreign intelligence investigations. That legislation, the Foreign Intelligence Surveillance Act of 1978 (“FISA”), Pub.L. No. 95–511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801 et seq. ), established a special court, the Foreign Intelligence Surveillance Court (“FISC”), to review the government's applications for orders permitting electronic surveillance. See 50 U.S.C. § 1803. Unlike ordinary Article III courts, the FISC conducts its usually ex parte proceedings in secret; its decisions are not, in the ordinary course, disseminated publicly. Id. § 1803(c).

We are faced today with a controversy similar to that which led to the Keith decision and the enactment of FISA. We must confront the question whether a surveillance program that the government has put in place to protect national security is lawful. That program involves the bulk collection by the government of telephone metadata created by telephone companies in the normal course of their business but now explicitly required by the government to be turned over in bulk on an ongoing basis. As in the 1970s, the revelation of this program has generated considerable public attention and concern about the intrusion of government into private matters. As in that era, as well, the nation faces serious threats to national security, including the threat of foreign-generated acts of terrorism against the United States. Now, as then, Congress is tasked in the first instance with achieving the right balance between these often-competing concerns. To do so, Congress has amended FISA, most significantly, after the terrorist attacks of September 11, 2001, in the PATRIOT Act. See USA PATRIOT ACT of 2001, Pub.L. No. 107–56, 115 Stat. 272 (2001). The government argues that § 215 of that Act authorizes the telephone metadata program. See id. § 215, 115 Stat. at 287 (codified as amended at 50 U.S.C. § 1861 ).

I. Telephone Metadata

Before proceeding to explore the details of § 215 of the PATRIOT Act, we pause to define “telephone metadata,” in order to clarify the type of information that the government argues § 215 authorizes it to collect in bulk. Unlike what is gleaned from the more traditional investigative practice of wiretapping, telephone metadata do not include the voice content of telephone conversations. Rather, they include details about telephone calls, including, for example, the length of a call, the phone number from which the call was made, and the phone number called. Metadata can also reveal the user or device making or receiving a call through unique “identity numbers” associated with the equipment (although the government maintains that the information collected does not include information about the identities or names of individuals), and provide information about the routing of a call through the telephone network, which can sometimes (although not always) convey information about a caller's general location. According to the government, the metadata it collects do not include cell site locational information, which provides a more precise indication of a caller's location than call-routing information does.

That telephone metadata do not directly reveal the content of telephone calls, however, does not vitiate the privacy concerns arising out of the government's bulk collection of such data. Appellants and amici take pains to emphasize the startling amount of detailed information metadata can reveal—“information that could traditionally only be obtained by examining the contents of communications” and that is therefore “often a proxy for content.” Joint App'x 50 (Declaration of Professor Edward W. Felten). For example, a call to a single-purpose telephone number such as a “hotline” might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual's social status, or whether and when he or she is involved in intimate relationships.¹

We recognize that metadata exist in more traditional formats, too, and that law enforcement and others have always been able to utilize metadata for investigative purposes. For example, just as telephone metadata may reveal the charitable organizations that an individual supports,...